David Harold Eastman v The Queen

[2007] ACTCA 24

DAVID HAROLD EASTMAN v THE QUEEN
[2007] ACTCA 24 (13 November 2007)

EX TEMPORE JUDGMENT

No. ACTCA 26 - 2007

Judge:  Higgins CJ
Court of Appeal of the Australian Capital Territory
Date:  13 November 2007

IN THE SUPREME COURT OF THE  )   No. ACTCA 26 - 2007
  )  
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

BETWEEN:DAVID HAROLD EASTMAN

Applicant

AND:THE QUEEN

Respondent

ORDER

Judge:  Higgins CJ
Date:  13 November 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The application be refused.

IN THE SUPREME COURT OF THE  )   No. ACTCA 26 - 2007
  )  
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

BETWEEN:DAVID HAROLD EASTMAN

Applicant

AND:THE QUEEN

Respondent

Judge:  Higgins CJ
Date:  13 November 2007
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. This matter is an application to the effect that I should make a recommendation which would enliven s 14A of the Remand Centres Act 1976 concerning the conduct of Mr Starkey, who is a Corrections Officer Grade 3 now at the Belconnen Remand Centre.  The basis for that application, as put by Mr Eastman, is summarised in the second paragraph.  He contends that Mr Starkey has persecuted him, discriminated against him, harassed him and generally may have behaved in a manner making it impossible for him to concentrate on the preparation of his court proceedings.  Mr Eastman supports that general allegation by reference to some specific instances, but that would seem to summarise the nature of his complaint.  He points out, and I accept that this is the case, that he is sacrificing a day to make this application and would not do so lightly.  He also says that what has occurred has genuinely distressed and distracted him. 

1. I make it clear that I accept that Mr Eastman is genuine in his complaint.  That is to say, he perceives that he has no option but to make this application and things that have happened – I will come back to that in a moment – have genuinely distressed and distracted him.  Against that, I also understand and accept that Mr Eastman has been diagnosed with a paranoid personality disorder.  There is perhaps some element of schizophrenia as well underlying that, although I do not know that that is particularly relevant for present purposes.  That may well lead Mr Eastman to adversely attribute to persons interacting with him malicious intent which may not be there. 

1. He points, for example, to the reference made to him applying to the court and there is also a reference to Mr Starkey having referred to the Director of Public Prosecutions (DPP) being on “the white side”.  Those things, as Mr Starkey I think now concedes or perceives, could have been perceived by Mr Eastman as inflammatory, to be sarcastic and/or perhaps to indicate an attitude of prejudice or bias on his part.  I will come back again to that in just a moment.  There is also a question of the degree of interaction between Mr Starkey and Mr Eastman.  There does seem to be a question of how frequent that was, although the evidence was unclear in that respect.  Certainly Mr Eastman’s perception of it was that it was excessive.  Mr Starkey did not think it was.  I do not know whether it could be less, that is another issue. 

1. And there was also a reference made to the position of persons such as Mr Eastman in this particular annexe when yard officers do not necessarily attend all the time so that requests can be made.  I will say nothing more about that than this, that obviously there is a procedural difficulty with respect to that position which manifested itself perhaps in the newspaper issue as well, in that it does seem to be isolated and therefore persons in there, particularly if there is only person in there, might well genuinely feel ignored. 

1. It is also true to say that Mr Eastman would, I am sure, be under a great deal of stress at the present time in trying to prepare for quite important hearings and it would be a recommendation I would make, though not to enliven s 14A, that one should be sympathetic with that difficulty that he is under, and understand that that could lead to, I suppose, a terseness on his part that might not be intended by him.

1. On the other hand, Mr Starkey, though he may or may not have been sensitive to Mr Eastman’s perception of things, did reject the suggestion that he had made the offensive comment which Mr Eastman states in his first paragraph, that is the “cop killer” reference.  He did concede that he made an indirect suggestion that Mr Eastman apply to the court.  He denied he repeated it, but he did say he made it.  And there was no issue between them about “the white side” comment except as to whether it applied to more than the DPP. 

1. There was also a question about the CDs which were received from Mr Grace QC.  Again there did not seem to be a dispute as to the basic facts there.  There may well be, and there obviously is, a dispute as to the motivation that Mr Starkey may have had for retaining the CDs until the following day before passing them on then to Mr Eastman.  One can see why Mr Eastman would think that it was a manifestation of some degree of discrimination against him, and I have to say that Mr Starkey’s explanation for why that happened was not entirely satisfactory. 

1. The CDs contained on their face a representation that they were transcripts.  I have not seen the attached letter from Mr Grace QC.  I imagine that it probably did make that point and it would have been better for Mr Starkey to have dealt with it then and there in a more thorough manner than he did.  That is not to say therefore that he is a dishonest person or a matter of that kind.  He frankly conceded that he did not look and it seems to me that was a proper concession for him to make. 

1. What I am driven to so far as that area of disputed questions of facts is this.  As Mr Eastman himself has conceded, there is nothing much to enable me to determine which of the two versions of facts is to be preferred.  I make it plain I do not reject what Mr Eastman says.  On the other hand, he does bear the onus of proving a fact which would enliven the discretion to make a recommendation.  I did not find Mr Starkey an unsatisfactory witness.  By reference to the fact that his explanation on one matter was unsatisfactory is not to say he was unsatisfactory as a witness, rather that it would seem to me that that matter could have been handled better at the time. 

1. There are, I accept also, a number of complaints which Mr Eastman has made and it may be that the very volume of complaints, although not, I accept, all about this matter, may have led Mr Eastman to feel, and perhaps there may be some justification to it, that at times his complaints are ignored, and that is an unfortunate result if it be so. 

1. It seems to me that these proceedings do highlight the fact that – and I hesitate to say this – that Mr Eastman is under stress.  When he is under stress I am sure things seem worse to him than they really are.  That may be called paranoia, it may be called a lot of things, but it is a genuine feeling on his part and it needs to be respected.  It does require, therefore, a great deal more patience in dealing with a person in Mr Eastman’s position than would otherwise perhaps be the case with the usual run of detainee. 

1. I would simply say that it would be wise for the staff at the Remand Centre, and, perhaps, as he has singled out Mr Starkey, him in particular, to bear that in mind and perhaps to keep his interaction with Mr Eastman to the minimum required by his duties.  But I make no recommendation formally in respect of that, simply to say that it would seem to me to be a desirable result to keep Mr Eastman’s mind focused on his court proceedings and to perhaps reduce the number of complaints that might be made to the Superintendent or Acting Superintendent who would otherwise be overworked with them.  And it follows that I make no response then to Mr Eastman’s request other than that. 

1. That concludes the proceedings for today.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 13 November 2007

Counsel for the Applicant:  Self Represented
Solicitor for the Applicant:  Self Represented
Counsel for the Respondent:  Mr D J C Mossop
Solicitor for the Respondent:  ACT Government Solicitor
Date of hearing:  13 November 2007
Date of judgment:  13 November 2007